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The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley Nov 2013

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

William K. Kelley

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …


Religion, Division, And The First Amendment, Richard W. Garnett Nov 2013

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …


Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett Nov 2013

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …


The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett Nov 2013

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Richard W Garnett

No abstract provided.


'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett Nov 2013

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Richard W Garnett

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …


Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett Nov 2013

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Richard W Garnett

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …


Church, State, And The Practice Of Love, Richard W. Garnett Nov 2013

Church, State, And The Practice Of Love, Richard W. Garnett

Richard W Garnett

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …


The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin Sep 2013

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin May 2013

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Peter G. Danchin

No abstract provided.


Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark Feb 2013

Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark

Faculty Scholarship

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …


Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark Feb 2013

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …


The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser Jan 2013

The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser

Pepperdine Law Review

No abstract provided.


The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh Jan 2013

The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh

Pepperdine Law Review

No abstract provided.


The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen Jan 2013

The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen

Pepperdine Law Review

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth …


God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi Jan 2013

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many …


Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett Jan 2013

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Journal Articles

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not …


'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett Jan 2013

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …